The Bruges Group spearheaded the intellectual battle to win a vote to leave the European Union and, above all, against the emergence of a centralised EU state.

Health and the Nation

Dr Lee Rotherham

Contents

Foreword by Tim Yeo MP, Shadow Secretary of State for Public Services, Health and Education

IntroductionRome to MaastrichtAmsterdam and NiceCreep and ConsequenceFrom Working Group to Final DraftGiscard's End Product

Health and Safety The Food Chain The Charter of Fundamental Rights Pandemics International Representation

ConclusionNotes

Foreword

Tim Yeo MP Shadow Secretary of State for Public Services, Health and Education

The last year has seen a remarkable reassessment of the European project. The cold breath of realism is at last being felt. In all member states the public is looking for a reduction in centralised bureaucracy and intervention, and a return to a proper focus on making the Single Market work. The European Commission must constantly be reminded of its economic mission. The EU must deliver real benefits to businesses, consumers and the European economies.

In the field of public health, we need to redefine the role of the European Commission. There are some overriding matters where co-ordination at the European level is valuable: the dissemination of information on SARS, for example, and the insistence on prompt action at all European borders. But most health issues are best tackled at national level and, even more, locally, - for example the setting of public health priorities, responses to substance abuse, and the organisation of hospitals and local care.

We must beware of central solutions imposed by central managers. Here in Britain, the NHS is already suffering from Labour's ethos of intervention, command and control. The Conservative party is determined to break down this overbearing structure, a culture where regulation and target-setting have become substitutes for patient care.

I want to see a devolution of power with more autonomy for hospitals, more freedom for clinicians, and more choice and control for patients. These will be themes on which we will fight the next general election.

Dr Rotherham's study is a timely reminder that the principle of subsidiarity must be fought for, if it is to be maintained. The success of our National Health Service should be judged not by its adherence to some theoretical model in Brussels or the Hague, but in the daily experience of those it serves.

09/02/04

Introduction

"Look at the number of areas in which EU jurisdiction is specified: competition, trade, asylum and immigration, foreign affairs, industrial policy, agriculture, fisheries, energy, transport, regional government, consumer health, social and employment policy, justice and home affairs. The list goes on and on. In fact, it is easier to make the point the other way around by asking how many Whitehall ministries would be left fully in control of their own affairs. The answer is one: the Department of Health."

Comment Section, Daily Telegraph, 12 May 2003

"Your leading article was unduly optimistic."

Letter from the author, Daily Telegraph, 15 May 2003

On rational grounds, health provision is a clear-cut national issue. Its functioning is primarily the result of government policy and regional, if not community, supply. After all, no factories exist to churn out lines of finished products, to be loaded onto cargo ships and exported. Its operation is local; its concerns human.

Yet this has not stopped the steady seepage of European Union activity into the fabric of the national health systems of member states.

The latest media story carries the tell-tale marks of naked policy ambition. In mid-September, newspapers carried reports that David Byrne, the EU Commissioner for Health, was putting together plans for a blanket ban on smoking in bars, cafes and restaurants. Privately, Commission officials were conceding that the EU presently had questionable legal authority to carry out this measure, but that they foresaw an opportunity to bend the rules by using the Health and Safety clause - in like manner to that by which John Major's 48 hour week opt-out had been circumvented. Such treaty circumspection was completely justified, explained the Commissioner, because smoking played its part in the deaths of 500,000 Europeans a year, and was too important an issue to be left in the hands of national governments.1

Health provision remains a controversial area of Community involvement, touching as it does on such issues as market forces in the environment of the socially vulnerable, and the right to set taxation rates.

Rome to Maastricht

While the Treaty of Rome made direct reference to health provisions, these were entirely in the context of reservations that could be exercised by member states. Grounds such as public health could be invoked to supersede provisions in the Treaty. Thus, Article 36 could be invoked by a country to suspend an aspect of the Treaty over imports and exports, where health protection was an issue; Articles 48 and 135 covered health risks involving the free movement of workers; whereas Article 56 permitted restrictions over the free movement of foreign nationals.

The shift in emphasis first appeared with the Maastricht Treaties. Earlier clauses were replaced with a direct Communities interest in areas of shared health concern. The new text reads as follows:

TITLE XPUBLIC HEALTHARTICLE 129

The Community shall contribute towards ensuring a high level of human health protection by encouraging co-operation between the Member States and, if necessary, lending support to their action. Community action shall be directed towards the prevention of diseases, in particular the major health scourges, including drug dependence, by promoting research into their causes and their transmission, as well as health information and education. Health protection requirements shall form a constituent part of the Community's other policies. Member States shall, in liaison with the Commission, co-ordinate among themselves their policies and programmes in the areas referred to in paragraph 1. The Commission may, in close contact with the Member States, take any useful initiative to promote such co-ordination. The Community and the Member States shall foster co-operation with third countries and the competent international organizations in the sphere of public health. In order to contribute to the achievement of the objectives referred to in this Article, the Council:

- acting in accordance with the procedure referred to in Article 189b, after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt incentive measures, excluding any harmonization of the laws and regulations of the Member States;

- acting by a qualified majority on a proposal from the Commission, shall adopt recommendations.

Thus, at a stroke, the Commission adopted a budgetary interest; a potential propaganda line (information and education); a right of policy initiation; an international role; and a policy area run by QMV. On the plus side for member states, harmonisation of laws and regulations was specifically excluded, and health involvement was limited to "major health scourges", including drugs, though this would be liable to interpretation.

Amsterdam and Nice

In the Amsterdam Treaty key amendments were made to the old Article 129, now renumbered Article 152 TEC. The Community's "contribution" was strengthened to oblige that it be "ensured". Its role in "complementing" national activity was underlined, in place of simply "encouraging". In the wake of the French blood scandals of the late Mitterand years, organ and transfusion safety was explicitly covered, and as a guarantee of competence in the next BSE-style incident, explicit reference was added to veterinary and plant measures connected with the protection of public health.2

Even now, though, a clause specifically noted that, "Community action in the field of public health shall fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care."

No doubt the health scares of the late nineties played their part in encouraging a clearer definition of where the EU stood. Amsterdam boosted the role of the EU in limited public health areas, established a clear intention for serious legislation to come, and shifted the Commission's role into a legislative motor to "complement" national legislation. The scope of initiative arising from this expression was open to interpretation, to say the least. Furthermore, harmonisation of Member States' laws and regulations was now permitted (under paragraph 4) with respect to safety in transplants and transfusions, and in the broad food safety role.

The key development that arose from the Nice Treaty came in a different section. Under Article137(1)k, provisions concerning health and safety at work now fell under qualified majority. We will return to this later.

Creep and Consequence

Articles 129 (Maastricht) and 152 (Nice) subsequently became used as the basis for Council decisions, establishing cooperative programmes. The actions based on these legal bases have become increasingly questionable. Those of 1996 included action plans to combat cancer and AIDS. 1997, however, saw the adoption of a programme on the prevention of drug dependence at Community level (which, though permitted by the treaties, was of questionable worth). 1999 saw a programme of Community action on injury prevention, and one on pollution-related diseases, together with a Council resolution "promoting mental health". 2001 saw a non-binding Council statement "on the drinking of alcohol by young people, in particular children and adolescents".3

However, this treaty creep was not confined to actions initiated by the Commission. The European Court of Justice has played a key and controversial part in developing legislation and extending the remit of the Communities to intervene in health matters. The problem lay in two sections of the treaties. Provisions relating to the internal market and to the freedom of services has been prayed in aid by lawyers, arguing that their clients had the right to choose where in the Single Market they could get their health provisions from if the national health services were not speedy enough to supply it.

This arose from the cases of Decker, Kohll, and Smits-Peerbooms.4 Combined, these ruled that the organisation and delivery of health and medical care products or services were regulated by Single Market rules, even though health provisions were covered by Article 152(5)TEC. The Court, in short, concluded that, while Community law did not prejudice Member States' powers to organise their health services, Member States did have an obligation to follow Community law when they were setting their national provisions. Where rules covered reimbursement - ie where the patient could be refused treatment overseas, or required prior consent from the authorities - such could constitute an obstacle to trade. These obstacles, the Court concluded, could be permitted for imperative reasons (such as prohibitive costs, or to permit equal general access to care), providing the restrictions were proportionate. Thus in the Decker case it judged that the patient could purchase spectacles without prior notification in another country, because he would have been reimbursed in his own state anyway. In Smits-Peerbooms on the other hand, it recognised that the patient did have to check first that his health insurers had contractual dealings with the hospital, before obtaining medical treatment abroad.

"In such situations, the European Union has to intervene from the point of view of the internal market in sectors which, in the Member States, are covered by 'non-commercial' areas of power (e.g. the powers of the ministry of education or public health). Without such intervention, the fundamental freedoms of the internal market would be devoid of their substance. In other words, the Community action in question has a transversal nature and may have an impact in the most diverse areas - and even areas for which the Union has been allocated only complementary powers - provided that obstacles inhibiting the internal market freedoms are identified."5

In plain English, the Court placed Single Market provisions over the rights of states to manage their own health provisions. It recognised as a caveat that in some off-the-shelf prescriptions the patient would have to ask first (health insurance schemes might preclude action, and the type of treatment itself might be seen as questionable). But the ECJ had crucially ruled that patients in the NHS could proactively obtain their treatment abroad.

TEC Article 99(2) was also an issue for the British Government. That article permits for QMV in the context of coordinating broad brush economic policy amongst EU member states. But ageing populations and their healthcare requirements have a direct impact on the national purse. Thus the Commission found it had an indirect line into British Government policy on how it funded the NHS.

Not surprisingly, all these areas featured on the British Government's list of tidy-up points when the European Convention began.

From Working Group to Final Draft

The key to understanding the latest evolution of EU health policy lies in the debates that took place in the Convention on the Future of Europe. More specifically, in that working group which dealt with "Complementary Competences".

In the weary jargon of Brussels, a "complementary competence" is a policy area where actions taken at EU level are meant to "add value" to those undertaken by the member states. The working group dealt specifically with policy areas in which both national governments and the Commission had the right to initiate legislation. This assumed, of course, that the Commission had not got there first - a procedure known as the "occupied field". In effect, member states retain their sovereignty except insofar as their remit has been squeezed by action at Community level.

Public health was just one of the competences that fell into this category - along with employment, customs cooperation, education, vocational training, culture, consumer protection, Trans-European Networks, industry, and Research and Development cooperation. The working group was mandated to examine these and determine whether they could better be handled differently. Theoretically, this included restoring the competence fully to national and intergovernmental control, but it could also mean further communitarisation.

Of the working group's members, perhaps only a minority of five could be classified as actively Eurosceptic. This meant that restoring competences to national control was not realistically going to feature on the agenda. Nevertheless, the working group's President - former EU Commissioner Henrik Christophersen - had the advantage of being Danish, and therefore tempered some of the group's work with the knowledge of widespread grassroots distrust of EU policy creep.

An early suggestion made was to include the concept of the "center of gravity" in the new Constitution.6 This permitted legislation that crossed article basis, providing that the legislators could argue that the 'middle weight' of the proposal fell in a particular area. It was intended as an armchair means of determining whether the Union had competence, or whether unanimity covered an area, through Cartesian logic rather than treaty law.

Another solution proffered was the "Christophersen Clause", which underscored requirements for the Union to respect the national identity of its Member States. In the case of health, the inference was that the NHS was a particularity of Britain, and would be covered in much the same way as the clause could be called upon to protect double decker buses, flavoured crisps, or milk chocolate made from vegetable rather than animal fat. Problems arose when some Convention members tried to define the limits of the clause. Would it include language, national citizenship, military service, educational systems, personal taxation systems, or even abortion? The clause quagmired: elements were lifted directly into the relevant sections. But the Christophersen basis did eventually survive into the final text as a diluted generality;

Article I.5: Relations between the Union and the Member States

The Union shall respect the national identities of the Member States, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including those for ensuring the territorial integrity of the State, and for maintaining law and order and safeguarding internal security.

Meanwhile, a debate was going on within the working group on the limits of the Union's interests in Health. What could justifiably be better achieved at EU level?

Joachim Wuermeling, a moderate Eurosceptic German MEP, set out one stall as part of a general submission.7 The EU's role lay in preventative health work through the exchange of information and best practice. To him, harmonization would hamper Member States, and even the setting of centralized EU standards would be more of a hindrance than a help, because it would remove the competitive element between national systems.

An alternative strategy came from fellow MEP Helle Thorning-Schmidt (better known as the Kinnocks' daughter-in-law). Her pet project was the "open method of coordination" - "a method of improving multi-level governance in federal systems or in more loosely coupled polities."8 This is a more Socialist model, that first gained impetus at the Feira summit under the Portuguese Presidency, where broad objectives and guidelines would be produced, and reports submitted on a regular basis. This carries the "double benefit" of obliging governments to do nothing while being able to issue press releases suggesting action. In reality, of course, problems may consequently follow with the courts and the justiciability of pledges made.

Other delegates meanwhile made more of a bid for the Health articles to be tightened up. The Greek delegate, for instance, called for the combating of narcotics to be given more prominence by being moved into a new article in its own right.

The result was that no group held a clear majority on how the Health clauses needed modifying. The Final Report of the Working Group, submitted to Plenary, did not include a draft text for a new Health clause. Instead, it made certain recommendations (many of which covered complementary competences as a whole).

These focused in part on confirming the legal status of actions already undertaken through such articles, a number of which had seemingly been illegal under the tortuous budgetary law of the old treaties. 9 The report endorsed "low intensity" measures, where there was a "common Union and Member States interest" to do so. It also recommended that public health (along with Trans-European Networks, or "TENS") be classified as areas which "in toto" fell into the supporting measure bracket. In other words, it provided a very rare instance of an attempt in the Convention to retreat from Community competence, in favour of the member states.10 As the Final Report put it, "The group felt that such a modification would be useful".

Giscard's End Product

The Convention produced its final copy in June and July of 2003. Public Health has been listed as a joint competence under (new numbering) Articles I.13 and I.16, but in a split manner. The EU has shared competence in "common safety concerns in public health matters", and can additionally exercise non-harmonising complementary powers for the "protection and improvement of human health".

If there is a health crisis, then the EU and national governments must handle it together. EU activity now has primacy where the two coincide.

Otherwise, where the Commission can identify an area with a health aspect, then it can start programmes and manage a blue-flag scheme. This latter is spelled out in the new Health Article:

PUBLIC HEALTHArticle III-179

A high level of human health protection shall be ensured in the definition and implementation of all the Union's policies and activities. Action by the Union, which shall complement national policies, shall be directed towards improving public health, preventing human illness and diseases, and obviating sources of danger to physical and mental health. Such action shall cover the fight against the major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health information and education. The Union shall complement the Member States' action in reducing drugs-related health damage, including information and prevention. The Union shall encourage cooperation between the Member States in the areas referred to in this Article and, if necessary, lend support to their action. Member States shall, in liaison with the Commission, coordinate among themselves their policies and programmes in the areas referred to in paragraph 1. The Commission may, in close contact with the Member States, take any useful initiative to promote such coordination, in particular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of public health. European laws or framework laws shall contribute to the achievement of the objectives referred to in this Article by establishing the following measures in order to meet common safety concerns: (a) measures setting high standards of quality and safety of organs and substances of human origin, blood and blood derivatives; these measures shall not prevent any Member State from maintaining or introducing more stringent protective measures; (b) measures in the veterinary and phytosanitary fields which have as their direct objective the protection of public health; European laws or framework laws shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee. European laws or framework laws may also establish incentive measures designed to protect and improve human health and to combat the major cross-border health scourges, excluding any harmonisation of the laws and regulations of the Member States. It shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee. For the purposes set out in this Article, the Council of Ministers, on a proposal from the Commission, may also adopt recommendations. Union action in the field of public health shall fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care. In particular, measures referred to in paragraph 4(a) shall not affect national provisions on the donation or medical use of organs and blood.

Several key features stand out. Firstly, consider what has not happened. The Commission's Health expenditure in supporting measures has not been dropped, even though it had technically been illegal. It has now been sanctioned, and this can be used to further the profile of the Community in the field - indeed, the existence of a dedicated Health Commissioner and civil servants demands it.

Secondly, no attempt has been made to create a Single Market opt-out for health. The "Centre of Gravity" principle was kept out of the Constitution, but it remains in European case law, and has not been superseded by this text. Therefore, NHS provision can continue to be challenged through the European Courts.

Thirdly, despite attempts in the Working Group, no sunset clause for legislation is included: so much for Gordon Brown's latest "wish list" of what he wants from the European Constitution. And as we have seen, while the Working Group's conclusions had called for all Health issues to be classified as supporting measures "in toto", "common safety concerns" have been placed in the shared competence bracket. Consequently, the EU will play a major part in determining overall Health policy; and in areas where it legislates, national governments subsequently cannot.

As we shall see shortly, there are also serious implications that arise for British participation in such bodies as the World Health Organisation (WHO).

Were this article the limit of the problem, diplomats might resolve to grin and bear it, trusting in Providence and a good lawyer at Strasbourg. But with an empowered Commission now set to push its old remit of ensuring a high level of health protection, other key elements in the Constitution come into play to create a serious legal threat.

1. Health and Safety Maastricht saw the nebulous emergence of Health and Safety. Article 3 TEC, together with Articles 129 (general Health) and 130 (Environment) provided for the mechanism that would be used to circumscribe John Major's veto on the Social Chapter. But with the voting into office of the New Labour administration, a possible veto on developing the area was averted, and the wording "Health and Safety" crept directly into the treaties in its own right.

The Constitution confirms, rather than revolutionises, the trend. For instance, it brings across the old Article 95, a huge legal loophole. Under Article III-65.3, 'H&S' is treated as a distinct field and is given equal prominence, requiring the EU to provide a "high level of protection, taking account in particular of any new development based on scientific facts". While Article III-104 identifies working conditions as a "complementary competence", the implication from III-65 is that all other H&S issues which can be (at least nominally) tied into the Single Market will be treated as a Community competence.

If Commissioner Byrne is looking for a means to implement his smoking ban, he may already have a legal basis to force it on states by Qualified Majority under this clause. The assumption must be that this has not been attempted, because a QMV quorum cannot currently be guaranteed.

The Commission certainly has developed a recent track record in this area. For instance, on the basis of science contested by the industry, the Commission undertook to ban phthalates from plastic, on the contentious grounds that in quantities it was poisonous, and that it could be found in childrens' toys, which a child might chew.11 Regardless of the science of the case, EU legislators have demonstrated an increasing tendency to deploy the Precautionary Principle (it is in the treaties). If there is a chance that something is the case, then 'something must be done'. The danger is that remedial measures are grossly disproportionate to the risk, which may not even exist as the science upon which the risk is adjudged may be so cutting-edge as to be uncorroborated.

2. The Food Chain

The Constitution does not appear to make sweeping changes here, but it does confirm the current situation: health will feature prominently in legislation for both Consumer Protection, and the Environment. Again, where either can be seen to have an impact on the Single Market, (through III-65) related Health measures would fall under QMV as a justifiable grounds for Community legislation.

3. The Charter of Fundamental Rights

The importance of the Community competence is boosted with the incorporation of the Charter. As is known, the original version was a stand-alone text. It was not incorporated into the Treaties proper, as the then-Europe Minister, Keith Vaz, colourfully pointed out in the context of the Beano. But even before the text had been agreed, the European Parliament had begun to reference it in support of its legislation, to be followed in due course by the ECJ referring to its provisions when reaching judgments.

The Labour Government had early indicated its intent not to see the Charter incorporated this time round either. However, as the working group dedicated to its revision soon revealed an integrationist majority, the Government delegate was forced to take a U-turn. The Charter would be incorporated after all, but guarantees would be demanded to ensure that its impact would be limited.

These came in two forms. Firstly, extra "horizontal clauses" would be added at the end, to apply laterally to each fundamental right, so that it would only apply to EU institutions, or when EU legislation was being implemented. The Charter was expressly forbidden from extending competences (Article II-51). The problem here is that so much of national law is actually European in origin, that the distinction is meaningless. The second defence was to allow for the explanatory notes that accompanied each 'Right' to have legal force equal to the wording of the 'Right' itself. The flaw in this plan is that these explanatory statements, while they do indeed limit the scope of application, have not actually been included in the draft Constitution. Their legal standing, therefore, appears to be secondary, and so the Court of Justice will have a right to reinterpret.

Consequently, the Constitution will incorporate a Charter of Fundamental Rights with limited protection from judicial review. Further, where a 'Right' is given and a related competence can be identified in the remainder of the Constitution, a plaintiff could logically bring a test case to identify an area where his or her perceived rights were not being upheld through an actual lack of legislation. The Commission could potentially be obliged to produce legislation with the Charter and the courts as a motor.

One of the 'Rights' (Article II-35) deals directly with health care, but while it refers to "national laws and practices" in the supply side, it directly refers to obligations arising from "the definition and implementation of all Union policies and activities" as well. The ambiguity of primacy is marked.

The Charter as a result is a muddle. Consider the following potential court cases; Article II-1: human dignity must be protected. Could this affect priority of treatment on the NHS? Article II-2: right to life. Is there no cap on expenditure on the treatment of patients? Article II-3: integrity of the person. Does this limit private health care activity where profit can be made in respect to the body, for instance in blood banks? What is the limit of the ban in human cloning? What is the limit on "eugenic practises", given the possibility of identifying genetic disorders? In the Whittaker case, the family went to the United States to have a child to treat a genetic disorder in their son. Would this be criminalized? Article II-4: degrading treatment. Can a hospital be sued for keeping patients on a trolley? (Well, we can hope so.) Article II-9: right to found a family. Does this require all applications for sperm bank use to be authorised? Article II-15: right to engage in work. While this is unlikely to legitimise the activities of quack doctors and phoney medical schools, it might mean that professional qualifications will have to be recognized throughout the EU, regardless of linguistic ability and differing levels of professional qualification.12 Article II-21: non-discrimination. Are there any situations where treatment could be seen as discriminatory towards one category of patients? Is there a predisposition, for instance, for smoking amongst members of one social category, meaning that general policy towards treatment of smokers could be interpreted as discriminatory? Article II-31: fair and just working conditions. In the light of the end of the derogation on junior doctors' working hour limits, how is this going to affect the NHS workforce and the Health budget? Article II-32: prohibition of child labour. Is Health and Safety going to end newspaper rounds for children? Articles II-37, II-38: environmental and consumer protection. This directly obliges the Union to guarantee citizens "a high level of protection" in these areas.

What flows from this convolution only time will tell. But increasingly, national courts will be called upon to find solutions for people who feel that government agencies or their elected representatives have failed to deliver. At the very least, the courts will fill up over a period of legal interpretation, while the Commission and European Parliament will be motivated to legislate.

4. Pandemics A number of delegates argued for a defined EU competence to deal with large-scale health crises, such as the SARS epidemic had threatened to become. It was quietly pointed out that no further extension of the treaties was actually required. Delegates were naturally unaware that a number of the standing committees and organisations set up to cover Health policy could cover such eventualities. For instance, there was already a Committee on the action plan for rare diseases; another for epidemiological surveillance and control of communicable diseases; another for the action plan for the prevention of AIDS and certain other communicable diseases; another for health monitoring; one for health promotion, information, education and training; and so on.

5. International Representation One final question remains. Who will represent British medicine abroad? Under Article III-179.3, both the Union and Member States are meant to foster cooperation internationally. The terms are to be negotiated between the parties, as set out in III-129.4.

However, under Article I-12, we find the familiar ratchet at work:

2. The Union shall have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union, is necessary to enable it to exercise its internal competence, or affects an internal Union act.

Ostensibly, this is already the case in practise, because following an ECJ ruling on TENs it was judged that EU delegates would represent all EU members in international negotiations where it had exclusive competence. In fact, the reality seems to have become a confused mish mash with everyone turning up even where the Commission is the key player - witness Cancun.

But now, what had been an ECJ interpretation becomes Treaty practice. In any area of Health (or anything else for that matter) where the EU has legislated in the past, it falls to the EU to represent national governments at international organisations.

This would cover UN organisations like the WHO, UNICEF, and UNFPA (the Population Fund). It would include other bodies like the working groups of the Council of Europe. In short, it covers both the remit and the fancy of all present and future EU working groups.

Conclusion

The EU Constitution fails to redress the imbalance in where legislative competence lies. It actually boosts the role of the Union in public health matters (Articles I.13 and I.16), and confirms Court judgments reached to date that contentiously interpreted previous treaties. Further, with the inclusion of the Charter of Fundamental Rights, the ECJ will now play a dominant role in the drive for more social legislation at the European level, and a revision of established NHS working practice. This comes at a time of policy ambition for the European Commission.

Meanwhile, a turf war is set to take place on who will represent the Union with its increasing responsibilities on the international stage, between the new permanent President of the Council of Ministers, and the Health Commissioner, supported by the Foreign Affairs spokesman. Under the Constitutional Treaty text, the Commission delegate will win. He will have a designated civil service to help him in his task.13

The track record of the European institutions indicates that these are not idle fears. The controversies regarding GM crops, and the banning of certain vitamin supplements on health grounds and in the name of harmonization, are both widely known. But how will the public react once what up to now had been a series of recommendations and action plans in other sensitive fields becomes enforced legislation, enacted at such a distance from the electorate?

Consider what subjects could feature in a proactive legislative programme: fluoridisation of drinking water; cannabis; drug prescriptions; sexual habits; abortion; psychiatric prisons; hunger strikes; personal living conditions; lifestyle choices, such as diet or exercise; hospital work; forced vaccination; private health provision; vehicle designs; airline thrombosis; alcohol consumption; pilots and driving licences; or patient prioritisation and waiting lists. So many aspects of our lives fall under "common safety concerns" or "protection and improvement of human health" that they are truly blanket provisions, under which legislation could be brought in where Member States otherwise would hold a veto.

On top of that, there is the matter of the shared economic interest. All EU countries under Maastricht are required to consider their respective economic management as a matter of common concern. This is now boosted by the Protocol on the Euro Group, which has a new, permanent President to facilitate the "ever-closer coordination of economic policies within the euro area". Patently, this will cover the big spending issues, such as pensions, wars, and health. Certainly, if the United Kingdom joins the Euro, the NHS will be under tight scrutiny and its budget and organisation subject to increasing interference. Even with Britain outside of the Euro, it is difficult to see how its members will resist repeated swipes at states which have been so 'anti-communautaire' as to escape unpopular constraints - particularly as the opt out is not intended to be permanent.14

The NHS needs reform. But it needs a solid structural overhaul and not policy change by legal subterfuge.

If some European states have a better Health service, it is not because of diktats from above: it is because of real diversity and the lessons of best practice learnt on the ground. The last thing the NHS needs is to see these alternative models homogenised in the name of standardisation - the socialist leg-irons of reform.

Notes Daily Telegraph of 19 September 2003. Article 118 TEC (renumbered in the Giscard Constitution III-107) further covers the "prevention of occupational accidents and diseases under Social Policy"). See Working Document 1 of Working Group V for a fuller list, pp.15-17. Decker - 28 April 1998, case C-120/95; Kohll - 28 April 1998, case C-158/96; Smits-Peerbooms - 12 July 2001, case C-157/99. Working Document 7 of WG V. The spelling was tellingly American. Working Document 15 of WG V. Working Document 12 of WG V. It would appear that administrative costs of the old complementary competences were not necessarily allowed for! In order to be legal, the funding needed to be approved first by a "basic act", and this had not happened. See Case C-106/96, 12 May 1998. The negotiators at Nice clearly overlooked the problem. See page 5 of the Working Group Final Report, CONV 375/02. Much of the debate centred on whether all children's toys should be included, or just those actually designed to be put in the mouth (like teething rings). A complicating factor was that alternative plasticisers were as, if not more, toxic. Logically it would be superseded by the following article, where businesses have to be run according to national practice. In any event, there is a conflict. The Council President would not have the benefit of such a dedicated 'EU foreign office', though it has been inferred he will 'sneak in' a small personal secretariat. The Health Commissioner will have at his disposal both his own directorate-general, plus the new elite foreign affairs secretariat The wording is absolutely clear on this point: "pending the accession of all Member States of the Union to the Euro area".